It's Your Will – Exercise it!

by Elgin E. Coutts

We, in Ontario, are singularly fortunate in that we are able to make Wills to which, subject to some relatively minor statutory invasion, full force and effect will be given after our deaths.

You don’t have to make a Will, but if you exercise that option, the Government of Ontario through the Succession Law Reform Act (the “Act”) has already made one for us and it’s provisions are iron-clad and inflexible.

Its terms are the same in all instances without any account being taken for different circumstances in any particular case however extenuating those circumstances may be.

While this government Will provides for the unalterable and orderly distribution of one’s assets, it has many disadvantages which you should consider.

1. The person or persons to whom authority is given to administer assets of your estate (Estate Trustee without a Will) may be someone whom you would not wish to handle your assets;

2. That Estate Trustee, except with an Order made by a Judge of the Ontario Court (General Division) must file a surety bond to ensure that the job is done properly. While the idea of such a bond may not be bad, there is an annual premium to be paid until the estate is fully administered and a judge makes an order cancelling the bond. The amount of the premium on the bond may not be insignificant and is of course a charge on the assets of your estate.

3. If persons under 18 (minors) are interested:

   1. Their entitlement must be paid to the Accountant of the Ontario Court (General Division);

   2. Payments to or for the benefit of the minor will be made only on the Order of a Judge of that Court and with the approval of the Children’s Lawyer (a government appointee);

   3. When a minor attains the age of 18, the money being held for him or her must be paid to him or her without restriction, whether it is $1,000.00 or $1,000,000.00, unless, of course, it had been found that that minor was incapable of managing property;

4. The persons entitled to share in the estate and the shares they take are those prescribed by the Act and they may well be persons whom you would not contemplate as beneficiaries;.

The foregoing represents some of the disadvantages of not having a Will.

The dubious advantage is that you save a solicitor’s fee for having a Will properly prepared to give effect to your wishes.

It’s your Will – Exercise it!!!